Signs posted at the entrance to Eddy Lepp's property
SAN FRANCISCO, CA -- During a recent hearing in federal court, medical marijuana defendant Charles “Eddy” Lepp watched a familiar man take the witness stand. This was a man who had been to Lepp’s home in 2004 and 2005, an acquaintance who had brought with him the promise of getting Lepp out of legal trouble. Under the guise of helpfulness, it was this man who made arrangements for Lepp to sell a pound of marijuana to an undercover law enforcement agent three years ago, setting the stage for the spurious sales charges the defendant faces now. In short, this was the snitch in Lepp’s case.
This time, however, his appearance boded well for the defense: the snitch was testifying because Lepp’s attorneys had made claims of governmental misconduct. In an evidentiary hearing that stretched out over multiple days in January 2008, witness after witness took the stand to answer questions about the sting operation used to secure sales charges against Lepp and his associate Daniel Barnes. The testimony not only shed light on the evolution of the undercover operation, but also provided various indications of fundamental instability of the case itself.
That case, from its beginning, is rooted in legal conflict: California’s Proposition 215 made marijuana legal under state law for those with a physician’s approval, but the United States government has continued to enforce federal laws prohibiting the plant. This contradiction has provided the justification for a series of raids by the Drug Enforcement Administration and cooperating agencies, of which the 2004 bust at Lepp’s Lake County farm was notably the largest. When federal agents and sheriff’s deputies descended on the property in August of that year, it took their crew three days’ worth of continuous labor to harvest the fields.
As its name suggests, Lepp’s “Medicinal Gardens and Multi-Denominational Chapel of Cannabis and Rastafari” combines principles of marijuana as medicine and marijuana as sacrament. According to reports, medical marijuana patients who donated to Lepp’s ministry would be assigned a parcel of farmland on which marijuana would be cultivated for them by church volunteers. At its height in 2004, this collective garden had grown to include over 32,000 marijuana plants, which were seized by law enforcement in the massive eradication effort.
The raid left Lepp facing federal counts for the criminal cultivation and distribution of marijuana, charges that his defense attorneys initially tried to get thrown out on religious grounds. During this time, they were encouraged by a U.S. Supreme Court ruling that upheld the right of a religious group to use ayahuasca, a hallucinogen that contains a schedule I controlled substance. But if Lepp expected his own religious beliefs to be given that same level of respect in federal court, he was sorely disappointed.
Following an evidentiary hearing in which Lepp gave testimony about his practices as a Rasta, U.S. District Judge Marilyn Hall Patel cast doubt on his religious defense. “I think his understanding of Rastafarianism was pretty superficial,” she said of Lepp during a December 2006 hearing. According to the judge, the defendant’s religious beliefs were not serious or sincere – they were, instead, “just something that allows him to keep growing marijuana.”
But where Judge Patel denied with one hand, she granted with the other. In the same hearing in which she ridiculed Lepp’s religion, she also ruled to throw out the warrant that was used for the 2004 search of his property. The warrant contained, she decided, inadequate descriptions of the location to be searched and the property to be seized. With the warrant gone, it appeared that the marijuana plants seized in the 2004 raid would no longer be used as evidence against Lepp.
Before the rejoicing could begin, however, the defendant had to face the government’s challenge. According to Assistant U.S. Attorney David Hall, law enforcement agents didn’t need a warrant to seize the marijuana plants because they were in plain view from a state highway. This legal principle, called the open fields doctrine, got full treatment during an extensive evidentiary hearing in September 2007.
Eddy Lepp holds a fattie and a microphone
During hours of law enforcement testimony, witnesses claimed that they had seen marijuana in Lepp’s fields from the highway. However, under cross-examination from the defense, many of these witnesses revealed that they had been clueless about the property lines, confusing which parcels of land belonged to Lepp and which belonged to his neighbors. The judge’s ruling on the hearing is still pending, and as this decision loomed, the defense attorneys have continued to fight by filing more motions for the suppression of evidence. After all, it’s not just the 2004 bust that Lepp has to worry about. He’s simultaneously dealing with charges from another raid that occurred on the heels of this first one.
Not long after uprooting some 32,000 marijuana plants from Lepp’s fields, federal agents and sheriff’s deputies came back for more in February 2005. This time, they netted only a few thousand plants, but they also arrested Lepp on the charge that he had sold a pound of marijuana to an undercover agent who had not mentioned religious or medical use. To the prosecution, the set-up seemed like an airtight way to put Lepp behind bars for decades. To the defense, however, it more closely resembled governmental misconduct, and that’s precisely what the most recent hearings addressed. It’s also what brought to the witness stand the snitch in this case, who proudly claimed to be the brainchild of the sting operation against Lepp.
This man is Benjamin Tenenbaum, a 45 year-old Lake County resident with an impressive résumé as an informant for a variety of law enforcement agencies. On the local level, he has assisted the Lake County Sheriff’s Office with setting up busts, and he has provided information to the California Highway Patrol as well. Federally, Tenenbaum has worked with the Bureau of Alcohol, Tobacco, Firearms and Explosives, and also, as in this case, been paid by the Drug Enforcement Administration for helping with sting operations. Over the past few years, he has pocketed tens of thousands of dollars for these efforts, $3500 of which was earned from the Lepp case. Tenenbaum’s reputation certainly preceded him, but that only made courtroom spectators all the more eager to get a good look at this professional informant.
Those watching from the gallery, all packed into the seats on the defendant’s side of the courtroom, craned their heads for a first glimpse of the witness…but the obese, balding man who came through the door hardly looked like an arch-villian. Clad almost cartoonishly in blue pants, a striped tie and suspenders, and waddling clumsily up to the stand, Tenenbaum was far from the smooth operator that courtroom observers expected to see. But there he was nonetheless, sitting on the witness stand for the world to see – this was the snitch.
Though he certainly had the build of a Christmas tree, Tenenbaum had none of its joviality. Instead, he had a sleepy, befuddled demeanor, breathing obscenely heavy into the microphone on the witness stand and giving answers in indistinct grumbles. Time and time again, the court reporter was compelled to interrupt the testimony and ask Tenenbaum to repeat his statements. He appeared not to have the volition to propel sounds adequately through his smothering flesh and his muffling beard, and as a result they were all garbled in the process. Gallery observers made no effort to conceal quizzical expressions as they struggled to make sense of this extraordinarily languid witness – be it from drugs or disease, or be it just an act of deception, Tenenbaum’s speech had a gravity of lethargy that made time seem to slow down.
Hanging out in the gallery during a break in testimony, Lepp was asked by his supporters about what was wrong with Tenenbaum. The defendant shook his head and chuckled softly. “You think he looks bad now – you shoulda’ seen this guy when he was up at our place!”
There was certainly something askew about Tenenbaum. He was Hall’s own witness, but even gentle questioning from the prosecutor elicited cagey answers to simple questions. Starting out, Hall asked Tenenbaum when he had begun working with the DEA. What the prosecutor got, in return, was a vague mumble followed by a failure to recall, and then a bizarrely descriptive answer.
“I started working for the DEA at approximately the same time the incident in New York occurred when the airplane flew into the buildings,” Tenenbaum finally offered. It was a response that perplexed observers and ruffled the prosecutor. Was this a coded answer, a way of hinting of some larger conspiracy, or a piece of creatively-worded biographical information? Tenenbaum’s words, whatever their meaning, were not the type of speech that is customarily accepted from sworn witnesses in a criminal court of law. As such, he was repeatedly instructed by judge and counsel to make his answers more direct.
After all, there were some key details that needed to be set straight. At issue was whether, during the 2005 sting operation, anyone working for the government had elicited incriminating statements from Lepp regarding his ongoing 2004 case. When a defendant is represented by counsel, this kind of behavior is a definite no-no for law enforcement – it’s an established violation of 6th Amendment rights. If Judge Patel ruled that the government had committed such a violation, she would likely throw out all evidence obtained from the sting operation…and that’s precisely what the defense attorneys intended.
During his examination of the witness, Hall asked these questions directly and got the expected answers. Tenenbaum claimed that, while setting up the 2005 sales bust, he was not asked to get admissions from Lepp regarding his 2004 arrest and criminal case. It wouldn’t be as simple as that, however. The witness’s word on the matter was not enough to show that there had been no governmental misconduct. Rather, Tenenbaum would be required to go through a detailed account of the sting operation, as well as several rounds of questioning on the subject.
Naturally, the opening chapter in Tenenbaum’s story was focused on explaining the reason he had gotten involved in the investigation in the first place. As he seemed to suggest, living in close proximity to Lepp had bred contempt. Tenenbaum painted a picture of the defendant as a town personality who was the subject of local chatter in many a corner of largely-rural Lake County. When pressed, the witness described first glimpsing Lepp while at a doctor’s office – after Lepp exited, Tenenbaum said, the waiting room was abuzz with stories about Lepp getting the California Highway Patrol to return seized marijuana to him. Later, the witness recalled, he overheard a conversation of Lepp’s at a café and was incensed. “He was sitting there bragging about how he was growing marijuana alongside the highway and there was nothing the government could do about it, and if they tried, he would ‘sue them out of existence,’” Tenenbaum said of Lepp. “I felt that he was trying to take advantage of the system and trying to mask what he really is, which is – he is a drug dealer.”
Motivated by animosity, as he claimed, Tenenbaum set out to contrive a trap for Lepp and then pitch it to law enforcement. He didn’t have to wait long for an opportunity – shortly after the 2004 bust, Lepp made a want ad for photographs taken of the raid on his property and he ran it in a local advertising paper. This paper, which Tenenbaum described as a place for people to sell “flea market stuff,” turned out to be Lake County’s Penny Slaver, a wordplay on the more widespread Penny Saver publication. This point caused some confusion at first, inspiring light giggles from the gallery and eventually requiring clarification from the judge.
As the witness put it, his tentative scheme was to bring some photos to Lepp in order to establish rapport with him. Tenenbaum testified that he had already obtained pictures of Lepp’s 2004 raid, and that he had them in his possession before he saw the Penny Slaver ad. They had been emailed to him, he said, by Sergeant Patrick McMahon, his contact at the Lake County Sheriff’s Department. Once Tenenbaum had built up some friendship and trust by providing these pictures, he could then lure Lepp into selling marijuana to a “friend” of his, who in reality would be an undercover agent wearing a wire.
Defense attorney Lidia Stiglich didn’t buy the explanation of how Tenenbaum got the pictures, and during cross-examination she hit the witness with a series of questions on the issue. The defense attorney was particularly skeptical of Tenenbaum’s assertion that he had not requested the photos from McMahon. “So, Sergeant McMahon just gave you police evidence because he thought you would find it interesting?” she asked, suspicion adding sarcasm to her voice.
The prosecutor made an objection to this question, and Judge Patel quickly overruled it. Nonetheless, Tenenbaum was not very forthcoming with his answer. “He sent me a link to photos on the internet,” the witness said of McMahon. But if Tenenbaum thought that focusing on a technical clarification would excuse him from the gist of Stiglich’s question, he didn’t have a prayer. The defense attorney was determined to make her point.
“What did the email say?” Stiglich asked, before proposing an answer to her own question. “‘Hi, how are you doing? I just thought you’d like to see some pictures of a random person’s marijuana’?”
“It was because of cases I’d worked on before,” Tenenbaum insisted. He wasn’t likely to suspect that McMahon would later take the stand and contradict this story. After all, the sergeant wasn’t even a scheduled witness.
In spite of McMahon’s absence, there was much talk of him and his role in the evolution of the sting operation. He was the one to whom Tenenbaum first pitched the idea of ensnaring Lepp with the undercover sale. McMahon was also the one who supplied Tenenbaum with the pictures necessary for carrying out his plan. In addition, it was McMahon who acted as a liaison between Tenenbaum and the DEA agents who took on the undercover work. Oddly, however, McMahon wasn’t there to confirm or deny these details, giving Tenenbaum every reason to believe his statements about the pictures would be the only testimony on the subject.
Of course, Tenenbaum also deceived the defendant about where the photos had come from and how he had gotten them. The story he told Lepp was one that was cooked up by the DEA case agent – the photos had come from a friend of Tenenbaum, who owned an upholstery business and found the pictures while hired to clean aircraft used by the DEA. This upholsterer friend, Tenenbaum would repeatedly mention to Lepp, hoped to be able to get a pound of marijuana when all was said and done.
Tenenbaum testified that Lepp would respond to these mentions by saying, “That won’t be a problem.” That was vague language, and far too passive to be a solid indication of an agreement to personally provide marijuana. So, Tenenbaum persisted, returning with more photos until, in his words, “Mr. Lepp was copasetic.” It was then that the mission was a go, and an undercover agent was selected and briefed about how to pose as the supposed upholsterer.
Establishing Eddy Lepp's property lines has confused law enforcement
Compensation for this operation was a sticky issue, and Tenenbaum’s evasiveness on the stand did nothing to make the matter more clear. He admitted on cross-examination that financial compensation was a motivation for proposing the sting, but acted as though there was no agreement that he would be paid by the DEA.
“How is the amount of money determined?” Stiglich asked the witness about his payments from law enforcement.
“I don’t know,” Tenenbaum replied.
“So, they would just give you money until they stopped giving you money – that was your understanding?” Stiglich’s inquiries were perfectly delivered. They were facetious enough to sting the listener into alertness, yet subtle enough to emphasize her points rather than drowning them in latent insults.
“I never assume I’ll get money,” Tenenbaum countered. “I’ve worked with the DEA before and not gotten paid.”
The issue got even cloudier when Stiglich tried to pin down specifics about the financial part of the alleged marijuana sale. Was there an asking price? Or was the marijuana supposed to be a form of compensation for the photos that had been given to Lepp? When questioned on this matter, the witness had no clear answers. Tenenbaum testified that all he had done was tell Lepp that he had a friend who wanted marijuana; when it came to any negotiations on payment, Tenenbaum claimed he had not been privy.
When Stiglich inquired about whether Lepp had offered Tenenbaum money for the photos, the witness was more forthcoming. “There was no discussion of him paying me for the photos,” the witness revealed. “If the photos were of use to him, he was going to name a strain of marijuana for my name.”
“That would be payment enough then,” Stiglich returned wryly, amidst scuffles of concealed laughter in the gallery.
“Objection,” Hall exclaimed, upright and indignant. “It’s argumentative.”
“It’s more like commentary, but I’ll just disregard it,” Judge Patel responded. Then she smiled at the prosecutor and advised, “You’ve got to have some fun.”
Tenenbaum’s testimony shed little light on the financial arrangements involved with the undercover operation, but his narrative of the events continued nonetheless. On the day of the scheduled sale, Tenenbaum went to meet with the defendant at his home. There, Tenenbaum recalled, he saw a triple-beam scale and a large plastic bag of marijuana. Although he made an effort to emphasize this point, it was hardly necessary, since he had already testified that he saw marijuana being used every time he went to Lepp’s house. “He had marijuana in large piles on coffee tables,” Tenenbaum said of Lepp, “and there was always marijuana being passed around, smoked continuously.”
Tenenbaum also testified that, before leaving the house that day, Lepp made a statement indicating that he intended to make a marijuana sale. “He was certain my friend would be very satisfied with the bud he would receive,” Tenenbaum said. Again, it was another vague, passive comment, with action attributed to no one. But Tenenbaum took it as a reassurance, and on that note, he and Lepp departed in separate cars to finally meet the mythic upholsterer.
At the pre-arranged meeting spot, the witness recalled, he introduced the undercover agent to Lepp but stayed out of earshot while the two of them talked. This distance gave an illusion of privacy to a conversation that was being surreptitiously transmitted by wire to a recording device. Tenenbaum testified that, although the amount of marijuana to be sold had been agreed upon in advance, Lepp said he had not brought enough marijuana with him and therefore he would have to go back to his house. Tenenbaum followed Lepp back home, leaving the undercover agent alone and waiting. It was then that the operation began to unravel.
Tenenbaum recounted that, once home, Lepp had his wife fetch a pound of marijuana from a safe behind a counter and then suggested that Tenenbaum go alone to take the marijuana down to his waiting friend. Dismayed by this turn of events, Tenenbaum claimed that he tried to convince Lepp to make the transaction himself...and when this didn’t work, the witness had resorted to charades. “I stumbled and pretended I had injured my leg and couldn’t drive the truck,” Tenenbaum said. Faking a fall was apparently the only idea he could conjure to get the situation back on track with the planned flow of events.
Although he intended to manipulate Lepp into delivering the marijuana himself, Tenenbaum admitted that his rouse failed and Lepp instead assigned the chore to a young man who was staying at the house. “I got in the car with the young man and we went down to the agent,” Tenenbaum said on the stand. “I told the young man I felt it was more appropriate for Eddy to deliver. He told me it was no problem, that Eddy had him do that kind of thing all the time.”
Eddy Lepp refuses to be silenced
Once they reached the meeting spot, Tenenbaum testified, the young man and the undercover agent exchanged packages. The transaction was smooth and quick by Tenenbaum’s account; however, there was one glaring deficiency in his description: he could not identify the young man. He gave a first name only, calling the alleged delivery boy “Jason,” which was clearly problematic because the young man who is currently charged with this crime is named Daniel Barnes.
Prosecutor Hall did his best to save the situation. Tenenbaum may have mixed up the names, but perhaps he could give a positive identification of Barnes in another way. Hall did his best to get the witness to give a physical description of the person he had seen make the delivery…and Tenenbaum did his best to resist giving it. With much prodding, he came up with a few basic descriptors, saying the young man was lanky, white, and between twenty and thirty years of age. When Hall asked for more detail, however, everything backfired on him.
“I don’t know,” Tenenbaum said, visibly frustrated. “I have a memory disorder.”
Those words were like poison to his testimony, eating away at whatever reliability had remained. “He’s impeaching himself,” someone whispered in the gallery, awestruck. Even the attorneys couldn’t conceal signs of surprise, their eyes widening at the admission. Damage done, Hall wrapped up his examination of the witness by quickly parading the rest of the skeletons: Tenenbaum’s two separate felony convictions in the 1990s for possession and manufacture of methamphetamine, as well as another felony conviction in 1999 for the possession of stolen property. By the time the attorneys had finished with the witness and he was left to face the judge’s questions, Tenenbaum had been stripped of most of his credibility.
Judge Patel handled the witness with characteristic good humor, focusing her inquiries on the heart of the matter: the genesis of the sting operation. Tenenbaum stuck to his claim that it had been entirely his idea from the start, but his repetition of this point wasn’t quite enough to satisfy the judge. Like the defense attorney, Judge Patel had some trouble swallowing the notion that Sergeant McMahon had emailed Tenenbaum out of the blue with pictures of Lepp’s raid.
“Did you say anything about interest in Eddy Lepp to Sergeant McMahon before he sent you the pictures?” the judge asked.
“He just thought I would be interested in the photos,” Tenenbaum replied. A moment later he tried to clarify that McMahon had emailed a link to the photos rather than the photos themselves. “There was a link – that’s a line of text –”
“I know what a link is,” Judge Patel interrupted, boisterously amused by the Tenenbaum’s condescension. She was, after all, the district judge who presided over the famous Napster case in 2001. “I may be old, but I do use a computer,” she told the witness, laughing.
Tenenbaum was excused from the stand in the wake of Judge Patel’s chuckles, and he lumbered out of the courtroom as though in a daze. His slow-motion mannerisms and groggy testimony did not set a precedent, however, and the witness who came to the stand next provided a sharp contrast in appearance and demeanor. This witness was Andrew “Andy” Cash, the undercover agent who played the role of the upholstery worker friend of Tenenbaum’s who wanted to get some marijuana from Lepp. Cash was svelte, with thick brown hair that was coiffed in an unusually stylish mullet and into an equally well-kept goatee. He spoke clearly and directly, but often leaned to one side of the witness stand in a manner that imparted a casual congeniality. This posture made him seem like a pal who had just stopped in for some coffee and a chat, as did the frequent flashes of his easy smile. It was a charming grin indeed, although a part of its brightness appeared to come from a sharp glint off of his incisors. This feature, combined with his thick hair and bright eyes, gave Cash just a hint of a ‘wolfman’ look…or, more precisely, the look of a gentrified wolfman who had just come from an appointment with the groomer. The comparison was more than just physical, of course – as an undercover agent, being a shapeshifter is his livelihood, his specialty.
By the time he took the stand in the Lepp case, Cash had been working in narcotics for about five years. He described himself as being employed as a deputy for the Sonoma County Sheriff’s Office and as a participant in a law enforcement task force that partners with the DEA. As he admitted in his testimony, he knew about Lepp’s earlier bust at the time he was cast as the upholsterer. But in spite of his close working relationship with the DEA, Cash claimed that his awareness of the 2004 cultivation case was limited and came only from reading the newspaper. Furthermore, he told the prosecutor, he believed that the 2004 bust had little to do with the 2005 undercover operation.
Eddy Lepp's house in Lake County
“My understanding was this was completely separate from what happened before,” Cash said of the sting. He also denied that this operation was part of an attempt to further investigate Lepp regarding the 2004 case. “My objective was solely to purchase a pound of marijuana.”
Hall appeared pleased with these statements, and ended his direct examination of the witness there. Stiglich, however, was predictably more difficult to satisfy. And she had a crucial nail to hammer: the sting could not be, as Cash asserted, “completely separate” from the 2004 raid, since the whole undercover operation was put into motion using photos of (and discussions about) this earlier bust. The defense attorney took the witness through several demonstrations of this point during her cross-examination, often drawing from a transcript of the conversation picked up from Cash’s wire on the day of the alleged sale.
Cash recalled that, while he was posing as the upholsterer, he asked Lepp not to reveal him as the source of the pictures from the 2004 bust. “I mentioned I didn’t want my name divulged in connection with any photos,” Cash testified. “And Mr. Lepp said, ‘The cops were at my house for x number of days and I never gave up anybody’s name.’ He said, ‘I will take a bullet before I will give up your name.’”
At this point in the conversation, Stiglich stressed, Cash had queried Lepp about the 2004 raid. In the transcripts, Cash asks about the magnitude of the law enforcement action taken against Lepp for the 2004 bust, using questions like, “Why are they fucking with you?” and “Do they have a hard on for you?” The transcript also shows the undercover agent inquiring about the ongoing criminal case from that earlier bust, even asking Lepp when he will be in court next.
Cash appeared to see little relevance in the issue of whether the marijuana was intended as compensation for the photos that Tenenbaum had given to Lepp. “The story was that I wanted to purchase marijuana regardless, whether I got money for the photos or not.”
The undercover agent was determined to arrange a sale, bringing up the notion first and in various ways. But even these solicitations were made through questions about the 2004 case. For instance, the transcript reveals that Cash eases into the sales proposal by asking Lepp if the DEA took all of the marijuana during the earlier bust. On the transcript, Lepp confirms that the marijuana has been seized, and goes on to theorize that the confiscated plants were buried rather than burned by law enforcement. Lepp also relates on the transcript that, ever since the bust, the way he gets his personal marijuana supply is by acting as a middleman for growers looking to sell their product. Once Cash asks, “What can I get a pound for?” the transcript details a discussion of prices, weights and strains.
But, as Tenenbaum had explained to the court already, the much-anticipated exchange from Lepp’s hands never occurred. Cash backed up this story on the stand, saying that he handed over a parcel of cash to someone other than Lepp, and, in turn, that person handed him back a pound of marijuana. Just who that person was, however, the witness wasn’t sure. “The name escapes me right now,” Cash said ponderously. “It was the person who came back from the house with the informant.”
Like Tenenbaum before him, Cash seemed to have forgotten some relevant details about the young man who supposedly handled the sales transaction. It was an odd situation, and could perhaps be consequential, given that Tenenbaum and Cash were the only witnesses present for the alleged sale. That problem was one that lay far down the road, however. For the time being, Cash had provided all the testimony necessary for the present purposes and was dismissed from the witness stand.
There was one final witness scheduled for the day, and it was a familiar one. Marc Macanga, the DEA agent who had coordinated the sting operation, rose from his chair at the prosecutor’s table and took the stand when called. It was a return visit to the hot seat for Macanga, who was questioned as a witness during other evidentiary hearings for this case, and the agent did it with an appearance of ease. The fruits of his sting operation were clearly in jeopardy, but Macanga was mild and cool, with a manner so unassuming as to seem, at times, flatly detached from the situation.
The witness had come into the sales sting when Sergeant McMahon sent Tenenbaum to the DEA with his proposal for the undercover operation. On the stand, Macanga denied that it was his intention to use the sting to gather information on Lepp that would further incriminate him on the charges he was already facing. But, as Stiglich stressed during the cross-examination, Macanga never directed Tenenbaum and Cash not to talk to Lepp about his 2004 case.
“The photos were of the 2004 bust,” Stiglich said of the pictures Tenenbaum used to bait Lepp into the sales sting. “What else did you think they’d talk about?”
“I thought they would talk about the buy I instructed,” Macanga answered pointedly.
The defense attorney was incredulous. “You didn’t think they’d talk about the 2004 bust?”
“No.” Macanga’s answer was plain, absolute.
“Does that make sense to you now?” There was no small measure of condescension in Stiglich’s tone.
Macanga hesitated, then admitted softly, “I see what you mean.”
Through the direct examination of his witness, the prosecutor had tried to emphasize a separation between the sting operation and the 2005 search warrant that followed on its heels. This was a difficult maneuver, of course, given that the results of the sting were part of what was used to get the search warrant, but Hall made a gesture at his argument nonetheless. The defense, however, saw something more sinister in the attempt to separate the sting from the raids of Lepp’s property. It seemed to Stiglich that too much about the undercover operation was left out of the affidavit for the 2005 search warrant.
Stiglich asked the witness if he was aware of Tenenbaum’s animosity towards Lepp, since nothing to this effect had been memorialized in Macanga’s reports on the case. Macanga confirmed that Tenenbaum had related these feelings to him “several different times,” but admitted he didn’t mention it in the affidavit for the 2005 search warrant. The undercover buy operation had been used as part of the probable cause for authorizing the 2005 search, but as Stiglich began to demonstrate, many important details about the sting were missing from the affidavit and, therefore, never made it to eyes of the judge who signed the search warrant. With carefully-worded questioning, the defense attorney theorized that Macanga had intentionally left out information that might have made the magistrate judge more reluctant to sign the search warrant.
“Your report doesn’t mention the rouse with the photos?” Stiglich asked.
“No,” the witness responded. “I didn’t think it was relevant.”
The defense attorney continued. “And your report doesn’t mention that the undercover agent brings up the purchase of marijuana?”
Macanga admitted that his report didn’t contain that information.
“It doesn’t mention Mr. Lepp said he would act as a middleman just to get some marijuana kicked back to him because he didn’t have any marijuana because the DEA took it all?!” The run-on question took all of Stiglich’s wind, but it came through with impact and delivered blow after blow of accusation.
Macanga confirmed that he had left these statements out of his report, and for a moment the defense attorney appeared satisfied. But before the witness could breathe a sigh of relief, he realized he wasn’t off the hook yet. Instead, Stiglich began to suggest that the magistrate judge was not the only one who was kept in the dark by Macanga’s omissions. As her questions soon revealed, Macanga had also failed to share information about the sting with colleagues who were working on the investigation of Lepp for the 2005 search warrant. Amongst the things Macanga failed to relate to his fellow case agent were the use of the photographs to facilitate the undercover operation and the full conversation that had been transmitted from the undercover agent’s wire.
Siglich continued with her cross-examination, shaking the foundation of probable cause for the undercover operation. She asked the witness what other knowledge he had gained through the informant. “There was no information that [Mr. Tenenbaum] knew Mr. Lepp?”
“Correct,” Macanga affirmed.
The defense attorney crossed something off on her papers, and went matter-of-factly to the next question on her list. “There was no information that he had seen Mr. Lepp sell marijuana?”
The witness repeated, “Correct.”
Stiglich concluded her rhetorical point. “And there was no information that he had ever been to Mr. Lepp’s house?”
“Correct,” Macanga conceded, leaving the listeners wondering what exactly law enforcement had used as the grounds to justify the sting operation.
The defense attorney paused for a moment to let the impact of that fact sink in, then moved on to her next insinuation of misconduct by inquiring whether Macanga had coached Tenenbaum on his testimony. “Did you suggest that if it was his idea, it’s okay, but if it’s yours, it’s not okay?” Stiglich asked about the origin of the undercover mission.
“No,” Macanga said, steady.
Stiglich pushed, “Is that your belief?”
The prosecutor stood to object, but the judge handled the matter with mellow ease. “I’ll let you ask the question, but do it a little more artfully please,” Judge Patel said to the defense. “‘Okay’ is not a legal understanding.”
Macanga, responding to the question, tried to put the situation into plain terms. “It wouldn’t have mattered where the idea came from,” he said. “If it seemed to me the proper course and it got approval, it would be okay.”
Stiglich finished with that, leaving Hall to salvage what he could during the re-direct of his witness. It wasn’t much of a recovery effort, however. In essence, the defense had suggested that Macangas’s reports left out mentions of the 2004 bust in order to hide the fact that the undercover operation had illegally gathered self-incriminating statements from Lepp about that earlier bust. The prosecution, however, argued that the sting was such a separate operation from the 2004 raid that it would be irrelevant for Macanga to mention anything about the raids in his reports on the undercover buy.
“Is it fair to say that what you left out was any reference to the 2004 case?” Hall asked the witness about his reports.
“Yes,” Macanga answered readily.
The prosecutor stayed on the short and narrow path of his theory. “Is it fair to say you didn’t think it had any relevance to this report?”
The witness again responded with an affirmation, “Yes”
“Nothing further,” Hall announced, leaving Macanga to be questioned by Judge Patel.
During the entire length of his direct questioning and cross-examination, Judge Patel had stared closely at the witness. Eyebrows raised, she had watched him with tremendous scrutiny, as though looking at him through a visual lie-detector device. When her opportunity for questioning arrived, she made only a few brief inquiries to clarify small details of the situations described in his testimony. When she finally got around to a more open-ended question, however, Macanga was astonishingly forthcoming.
“What did Sergeant McMahon tell you about Mr. Lepp?” Judge Patel asked the witness.
“That he had worked with law enforcement, and that he presented me with a chance to be involved in a distribution bust,” Macanga said initially. Perhaps to explain why this was significant, he continued, and became more and more candid about his intentions. “It was my belief all along that Mr. Lepp was in the business of cultivating and distributing marijuana, and regardless of how hard we hit him in August 2004, that he would continue to generate income by raising marijuana plants.”
The answer betrayed a feeling of futility, suggesting the witness knew that even the “largest medical marijuana bust in history” wasn’t going to act as a deterrent to future cultivation. Under this way of thinking, constant vigilance and continuous busts would be necessary to keep Lepp’s fields clear. But the response imparted more than a sense of ineffectuality – it told Judge Patel, in no uncertain terms, that Macanga had been drooling for a chance to bust Lepp again. It appeared to answer the judge’s question sufficiently.
After Macanga was excused, there was a moment of disconnect and delay. Judge Patel paused, an expectant eye on the empty witness stand, but no other names were called. Sliding her gaze out towards the attorneys, she asked in a skeptical tone, “Why are we not hearing from Sergeant McMahon?”
“I didn’t subpoena him,” Hall said plainly. When the judge requested an explanation for this failure, he gave little more than a shrug. “I didn’t think it was relevant to this motion,” was all the prosecutor mustered.
“This is a real problem,” Judge Patel said, flabbergasted by McMahon’s absence. She pointed out that this witness was the law enforcement officer who participated in the 2004 bust and later made the arrangements for getting the 2005 sting operation underway. “What was his motivation in setting this up? We need to know these things,” the judge insisted. Furthermore, she noted to Hall with slightly narrowed eyes, “I am interested in your lack of curiosity.”
The prosecutor took the criticism with a hangdog expression, assuring the judge that he would get McMahon on the stand at the soonest availability. A week later, the promise was fulfilled and the much-discussed sergeant was there in the flesh. He presented as a clean-shaven man with soft, sympathetic eyes that looked like they might belong to an emotive talk show host. His dark green suit did its best to make the shocks of graying hair on his temples appear distinguished rather than dull, and a moderate widow’s peak made his hairline look stylized without being showy. The sergeant seemed, in general, to be cautiously comfortable on the stand.
McMahon began his testimony with obligatory background information about his employment and his involvement in the Lepp case. He explained that he was now employed by the Napa County Sheriff’s Department, after spending 15 years with the Lake County Sheriff’s Department. Some of those years, including 2004, McMahon had served as the sergeant in charge of the investigations division. He had participated in the execution of the 2004 search warrant at the Lepp property and, he believed, in the 2005 search as well. However, he denied any role in the actual undercover operation, except for hooking up Tenenbaum and Macanga, and providing photos for them to use in the sting. That part of his story matched the testimony of previous witnesses, but this is where the similarities ended.
Tenenbaum had described himself as being “close personal friends with Sergeant McMahon,” but that was hardly a sentiment to which the sergeant admitted reciprocity. “He’s a confidential informant,” McMahon replied when asked to describe his relationship with Tenenbaum. Their social interaction, the sergeant claimed, was on a professional basis. “Usually, it’s about cases he’s working,” McMahon said of email exchanges with Tenenbaum. And that would be plenty of subject matter for fodder – the sergeant testified that Tenenbaum had assisted with about a dozen cases for the Lake County Sheriff’s Department, some of which he’s worked since the sting on Lepp.
Defining relationships is a subjective matter, but McMahon and Tenenbaum also disagreed when it came to cold, hard facts. On the stand, the sergeant flatly contradicted Tenenbaum’s account of the email exchange that took place regarding the photos of the 2004 bust. Tenenbaum had testified insistently that, before he ever saw Lepp’s Penny Slaver ad, McMahon had emailed him the pictures of the raid out of the blue. McMahon testified instead that he emailed the link to the pictures in response to a phone call in which Tenenbaum talked about Lepp’s Penny Slaver ad and asked McMahon if he had any pictures of the bust.
Judge Patel made sure to follow up with a question specifically confirming McMahon’s recollection of these details, just to be sure that there was a real divergence in the witnesses’ stories at this point. She got that confirmation smoothly, and a knowing glint in her eye served as the only signal that she knew at least one witness in her courtroom was having difficulty with the truth.
It was no big surprise for the judge to see a discrepancy in the stories – after all, she has doubted the legitimacy of the sting operation from the beginning. But Judge Patel did appear to find it peculiar when McMahon revealed that the pictures that McMahon gave to Tenenbaum had been up on the Lake County Sheriff’s website, available to the public to access at will.
“They were what we would call ‘trophy photos,’” the sergeant explained. “Individual law enforcement officers at the scene would have cameras and take pictures. We would take them because it’s remarkable – 32,000 plants on the side of the highway.”
Although he used the term “we,” McMahon didn’t mean to refer to himself. As he claimed, he took none of the photos, saying, “I was too busy to take pictures.” But, he asserted, all of the photos that were up on the Lake County Sheriff’s website were taken by law enforcement officers. When asked whether these pictures could be considered evidence, he casually agreed that they might be.
It was puzzling to consider that, with all the hubbub over obtaining the photos, they had been publicly accessible on the internet all along. The gallery seats hummed with the murmur of questions. Why, if they were so easy to get, did Lepp put out a classified ad for them? And, for that matter, why did Tenenbaum have to go through the process of requesting them from McMahon? The sergeant provided no answers, but he did make it abundantly clear why he had been so helpful with facilitating the sting operation. “He shopped plenty of cases to us that didn’t go anywhere,” McMahon said of Tenenbaum. But with Lepp as a target, it was a different story entirely. Before Tenenbaum even came calling with his ideas for an undercover operation, the sergeant was already interested in further investigations on Lepp.
“We all believed that Mr. Lepp was involved in continuing cultivation, and if we could get further evidence, there would be more search warrants, more cases,” McMahon said frankly.
“Did you know Mr. Lepp had an open case,” Stiglich asked, shortly before the sergeant was excused from the stand.
But McMahon was coy, chuckling, “I think Mr. Lepp’s had an open case for as long as I can remember.”
And indeed it seems true. This current case has been bumping around in district court for over three and a half years, gaining such a quiet mythology of perpetual motion that one could easily begin to believe in its immortality. But now, as the judge deliberates on whether to throw out the charges, it appears that the breaking point in the Lepp case is approaching, and those who watch are waiting to finally see what is real and enduring, and what has been merely an illusion.
Cultivation area on Eddy Lepp's property
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